Recall of MPs draft bill: some concerns

16/12/2011

The UK Coalition government has presented to Parliament a draft bill on the recall of MPs.

As I have previously written, there is currently only one Commonwealth jurisdiction which has recall legislation in place, and that is the Canadian province of British Columbia. You can read about BC’s recall legislation in this post.

The UK government is proposing something far more limited. Recall of an MP would be triggered in one of two ways:

An MP is convicted in the UK of an offence and receives a custodial sentence of 12 months or less; or

the House of Commons resolves that an MP should face recall for “serious wrongdoing”.

There are caveats to the above. For example, detention on remand or solely on mental health grounds would not trigger a recall petition. Convictions outside the UK would not trigger recall under the first condition, but could be taken into account by the House under the second condition.

If either one of the above two conditions is met, the Speaker would then notify the returning officer in the MP’s constituency that a petition is to be opened.

The petition may be signed by constituents if they are on the electoral register on the first day of the signing period or the day on which they sign. The petition will be opened two weeks after the receipt of the Speaker’s notice and the petition available for signature for eight weeks. The petition would have to be signed by at least 10% of registered voters in that constituency. If that threshold is achieved, the MP’s seat will be automatically vacated and a by-election called. The recalled MP could seek re-election in the by-election, unless they no longer meet the eligibility criteria for candidacy.

The White Paper accompanying the draft bill is lengthy – 100 pages, and I admit that I have not yet read through the entire document. However, I do have some immediate questions concerning what has been proposed.

Regarding the first condition that would trigger a recall petition, an MP being convicted in the UK of an offence and receives a custodial sentence of 12 months or less, this is in the draft bill to address a perceived shortcoming of the Representation of the People Act 1981, which only disqualifies MPs who receive custodial sentences of more than 12 months. My question is this: why not simply amend the Representation of the People Act 1981 to close this loophole and have MPs disqualified for any custodial sentence, as per the caveats outlined in the draft bill?

Regarding the petition process itself, I think the 10% signature threshold is far too low. I would increase that to at the very least what British Columbia requires – 40%. Ideally, I would prefer to see that a majority of registered voters in the constituency want the MP recalled.

The White Paper states that recall shouldn’t be triggered for “purely political” reasons, but only where an MP’s conduct falls below the standards expected of those elected to public office, however, if only 10% of registered voters need to sign the petition to disqualify the MP, it could become a very partisan affair. For example, if the MP in question was a Labour MP, there could be a concerted effort by non-Labour supporters in that constituency to get the required number of signatures purely in the hope that a different party might succeed in winning the seat in the by-election. Setting the threshold higher, say at BC’s 40% would greatly safeguard against such partisan activity. And in a more general sense, what if, at the close of the eight-week signing period, a petition ends up signed by 23% of registered voters? That means 77% of registered voters didn’t sign the petition. Surely the fact that an overwhelming majority of registered voters did not sign a recall petition should matter more than the fact that a minority did sign it?

Also, unlike the recall petition process in British Columbia, voters themselves will not be able to initiate a recall petition. The petition will be triggered either by the MP receiving a jail sentence, or by the House of Commons itself. Voters will only be able to confirm if they want their MP recalled once one of those two conditions occurs.

There is also no definition of what would constitute “serious wrongdoing”. The White Paper acknowledges that any statutory definition of “serious wrongdoing” would be “limited in scope and open to interpretation by the courts” and that it would require updating on a regular basis. Therefore, no formal definition is provided, which to me seems to be as problematic as trying to define “serious wrongdoing”.

The House of Commons Political and Constitutional Reform committee has issued a call for evidence on the Government’s proposals, with a deadline for receiving submissions of 30 January 2012. The press release from Cabinet Office is here.